PIERRE, S.D. — The proponents of a marijuana legalization effort and attorneys representing two law enforcement agents, who sued to overturn that measure with Gov. Kristi Noem's blessing, squared off in the South Dakota Supreme Court on Wednesday, April 28 — with justices peppering the litigants with a flurry of questions about what all acknowledged was a historic case.

"Should this court look to other states or rely on our own prior precedent?" asked Justice Janine Kern, acknowledging "technically, this is a case of first impression."

At stake for the first time before the high court is not merely adult's possession of marijuana, which Amendment A legalized after 54% of voters approved last November, but specifically the parameters of a 2018 constitutional amendment that limited all subsequent constitutional amendments to a "one-subject" provision.

Attorneys representing Pennington County Sheriff Kevin Thom and Highway Patrol Superintendent Col. Rick Miller argued on Wednesday, specifically, Amendment A fails that test.

"Amendment A cannot represent the will of the people if it is enacted in contravention of the people's constitution," said Prostrollo.

WDAY logo
listen live
watch live
Newsletter signup for email alerts

Justices also mulled whether Amendment A violated a phrase in the original 1889 constitution, namely a one-vote, one-amendment clause.

But in his opening remarks, Brendan Johnson, former U.S. Attorney for South Dakota and counsel for the group that brought the ballot measure to voters, obliquely warned the justices against overturning the will of 400,000-plus voters.

"Too many feel like elections are rigged anyway," said Johnson. "The standard should be exceptionally high."

Attorney Brendan Johnson, representing proponents for Amendment A, a ballot measure to legalize recreational marijuana, sits in the South Dakota Supreme Court in Pierre on Wednesday, April 28, 2021. Joe Sneve / Pool photo
Attorney Brendan Johnson, representing proponents for Amendment A, a ballot measure to legalize recreational marijuana, sits in the South Dakota Supreme Court in Pierre on Wednesday, April 28, 2021. Joe Sneve / Pool photo

Prodded by Chief Justice Steven Jensen whether the 70% of voters who supported a separate ballot measure legalizing medicinal marijuana may've supported a portion of Amendment A, which legalized hemp, as well as medicinal and recreational marijuana, but not the whole package, Johnson pushed back.

"We go in with the assumption that the people knew what they were voting for," replied Johnson.

The exchange differed in tone from three months ago, when Sixth Circuit Judge Christina Klinger, who struck down the amendment on procedural grounds, largely appeared to agree with opponents, only once breaking her silence to ask Johnson why the measure's authors didn't use the word "cannabis" in the amendment's title to signify a single subject.

Certainly, some of the justices, particularly Kern and Patricia DeVaney, poked at Johnson's claim the public vetted Amendment A, with Kern noting 55 sub-sections appeared in the constitutional amendment's text.

"There was very little publicity for the far-reaching implications [of the amendment]," observed Justice Kern.

DeVaney, similarly, characterized Amendment A as "more than a pure statement, a single subject."

But this time, the justices had tough questions for Prostollo, as well.

At one juncture, Justice Mark E. Salter, suggested the state's opposition to an amendment housing all regulation under the Department of Revenue was perhaps a separate issue from the clear intent of a majority of voters, to legalize marijuana possession.

"Maybe that's the next case, though?" asked Justice Salter. "Maybe that's the one that awaits us?"

"We are there," replied Prostrollo. "This is that case."

When Prostrollo noted that the legalization of marijuana would significantly change the job for the highway patrol, arguing that Amendment A constituted a revision — which would require a constitutional convention — rather than an amendment, Salter again pressed her.

"Isn't that the nature of an amendment?" he asked. "That the people through their vote could do something different?"

A question raised prominently in proponents' briefs, namely that Miller and Thom lack standing, was only briefly broached when Salter interrupted Morris to ask whether a 20-year-old opinion finding that a school district couldn't sue the state applied to a county sheriff.

In response, Morris delved into a brief history lesson on Pennington County, which was founded in 1877, prior to statehood, adding, "At best, his office was continued by statute."

The proceedings, which allowed cameras in the courtroom and were broadcast over a live feed, wrapped up after an hour.

It is not yet known when the justices will issue an opinion on the case. The original effective date of Amendment A was July 1, 2021.